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Weekly Update Volume 41, Issue 11

04/11/2011

LITIGATION 

PUBLIC LANDS, OFF-ROAD VEHICLE USE:

The Ninth Circuit upheld the dismissal of a citizen group's lawsuit seeking to compel the BLM to prohibit off-road vehicle use in Oregon's Little Canyon Mountain area. The BLM did not make a finding that the off-road vehicle use complained of by the group had caused "considerable adverse effects" that would trigger a mandatory closure. Nor was the BLM required to make such a finding, as the regulations give the agency the discretion to decide how and when a determination of considerable adverse effects will be made. Accordingly, the court refused to compel the BLM to close Little Canyon Mountain to off-road vehicle use. In addition, the BLM's denial of the petition to close Little Canyon Mountain to off-road vehicle use was not arbitrary and capricious. The petition complained about a number of things, ranging from noise to environmental degradation. But there is no evidence that the group provided the BLM with specific information or scientific studies supporting allegations of environmental damage that would qualify as considerable adverse effects. The lower court's grant of summary judgment in favor of the government was therefore affirmed. Gardner v. United States Bureau of Land Management, No. 09-35647, 41 ELR 20139 (9th Cir. Apr. 7, 2011).


ESA, INTERAGENCY CONSULTATION:

The Ninth Circuit held that a U.S. Forest Service decision that a proposed mining operation may proceed based on the miner's notice of intent (NOI) does not constitute an "agency action" for purposes of triggering the ESA's interagency consultation obligations. The case involves the Forest Service's approval of multiple small-scale suction dredge gold mining operations in the Klamath River Basin. A Native American tribe filed suit against the Forest Service alleging violations of the National Forest Management Act, NEPA, and the ESA, but the district court denied summary judgment on all grounds. On appeal, the tribe raised only the ESA claim, challenging the Service's decision to accept the miners' NOIs without consulting with other agencies about the biological effects of the miners' conduct. But the Forest Service's receipt of an NOI and resulting decision not to require a plan of operations is most accurately described as an agency decision not to act. Because prior case law holds that inaction is not action for ESA §7(a)(2) purposes, the lower court properly denied the tribe's motion for summary judgment. Karuk Tribe of California v. United States Forest Service, No. 05-16801, 41 ELR 20140 (9th Cir. Apr. 7, 2011).


OIL DRILLING, PERMITS:

A district court, on cross-motions for summary judgment, upheld a DOI regulation requiring oil lessees to obtain drilling permits for development and production drilling but denied both motions as to a DOI regulation setting forth new requirements for drilling in the western Gulf of Mexico. Oil drill operators argued that the Outer Continental Shelf Lands Act (OCSLA) authorizes a permit requirement only in connection with exploration drilling pursuant to an approved exploration plan. But OCSLA imbues Interior with the authority to enact regulations that inextricably intertwine with drilling in the development and production phase. This broad authority justifies the conclusion that the agency's construction of OCSLA is not unreasonable. The court, however, could not grant the government's or the operator's motion for summary judgment with regard to a DOI regulation requiring operators to prepare "development operations coordination documents" (DOCDs) in connection with development and production activities in the western Gulf of Mexico. The operators argue that the regulation requires them to prepare what is known as a "development and production plan," which, they allege, may be imposed only in the Florida Gulf. The operators' as-applied challenge posits that the government has intentionally used the DOCD requirement to delay drilling in the western Gulf. The question of intentional delay presents an issue of material fact that cannot be resolved at this stage of the litigation. Ensco Offshore Co. v. Salazar, No. 10-1941, 41 ELR 20138 (E.D. La. Apr. 6, 2011) (Feldman, J.).


CWA, SMCRA:

A district court held that mining companies violated the selenium effluent limitations set forth in their state-issued NPDES and surface mining permits. The companies had sought permit modifications from the state's environmental agency, and when those requests were denied, the companies appealed to the state's environmental quality board, which stayed the agency's orders as well as the effective date of the selenium effluent limitations contained in the permits. The companies therefore argued that an environmental group's CWA and SMCRA citizen suit against them was premature because the selenium effluent limitations were stayed by the board. But the board exceeded its statutory authority when it issued a stay of both the orders before it on appeal and the underlying permits, which were not the subject of an appeal. Accordingly, the underlying permits and the effective dates of the selenium effluent limitations are currently operative. Because the environmental group established that the companies are in continuing violation of the CWA and the SMCRA, the court granted the group's motions for summary judgment. The scope of injunctive relief and the amount of civil penalties to be assessed will be determined at a later date. Ohio Valley Environmental Coalition v. Coal-Mac, Inc., Nos. 3:10-0833, -0836, 41 ELR20141 (S.D. W. Va. Mar. 31, 2011) (Chambers, J.).


NEPA, WIND ENERGY:

A district court denied environmental groups' motion to preliminarily enjoin the BLM from authorizing the site clearing and construction of a wind energy facility in Spring Valley, Nevada. The groups are not likely to succeed on the merits of their claim that an EIS was required. The BLM's decision to forego issuing an EIS is justified by the adoption of significant mitigation measures to offset potential environmental impacts. Moreover, the BLM sufficiently considered the cumulative impacts of the project and took a "hard look" as required. In addition, a denial of a preliminary injunction at this stage in the proceedings will not result in irreparable harm to either the sage-grouse or the freetailed bats. Further, the balance of equities tips in favor of the government. Delaying this project would harm federal renewable energy goals, and the project is beneficial to Nevada's economic recovery as well. And while the public has a strong interest in preserving the environment and protecting species like the free-tailed bats and greater sage-grouse, that interest is outweighed by the public's economic and energy interests. As such, the groups failed to carry their burden of showing that a preliminary injunction should issue at this time. Western Watersheds Project v. Bureau of Land Management, No. 3:11-cv-00053-HDM-VPC, 41 ELR 20143 (D. Nev. Mar. 28, 2011) (McKibben, J.).


GROUNDWATER POLLUTION, TORT LAW:

A district court granted in part a bottling company's motion to dismiss individuals' tort and state law claims against it for groundwater contamination. The individuals alleged that the company violated the terms of their wastewater discharge permit by spraying excess wastewater over a sustained period of time, that the excess spraying led to contamination of groundwater with heavy metals, and that the contaminated ground water inflicted property damage and physical ailments. However, each individual must state how the company's alleged behavior gives him or her a right to relief. Therefore, only those individuals who met this requirement may go forward with the case. As for the remaining plaintiffs, the court dismissed their negligence per se claims. Negligence per se is not an independent cause of action under Michigan law. Plaintiffs may offer evidence of statutory violations to establish a prima facie case under their claim of negligence, but they may not maintain a separate claim of negligence per se. In addition, Michigan does not recognize claims of trespass where groundwater contamination is the only alleged injury. Accordingly, the trespass claims were dismissed as well. The court also dismissed the individuals' Michigan Natural Resources and Environmental Protection Act claims to recover the cost of bottled water for drinking and cooking and for the replacement or repair of plumbing fixtures and other personal property. Costs that are not associated with "response activities" are not recoverable under the Act. And the court dismissed the individuals' claims for injunctive and declarative relief under the Michigan Environmental Protection Act because their request to have the company perform additional response activities not required by the state environmental agency is tantamount to challenging the adequacy of the agency's decisions with respect to remedial action. Courts do not have subject matter jurisdiction to review an ongoing environmental response directed by the agency. Abnet v. Coca-Cola Co., No. 1:10-cv-481, 41 ELR 20144 (W.D. Mich. Mar. 31, 2011) (Bell, J.).


URANIUM MILL TAILING RADIATION CONTROL ACT, REMEDIATION:

A district court granted the United States' motion to dismiss a Native American tribe's claims against it in connection with the government's remediation of a former uranium mill located on the Navajo Nation Reservation near Tuba City, Arizona. In 1985, the DOE and the tribe entered into a cooperative agreement concerning the government's selection and performance of remedial actions at the mill. Because the agreement released the United States from all claims "arising out of the performance of any remedial action" at the site, the Tribe waived its right to sue under the Uranium Mill Tailing Radiation Control Act. In addition, none of the federal statutes invoked by the tribe create a right of action or waive the government's sovereign immunity. Nor can the tribe bring any of its claims under the APA because it failed to allege any final agency action. And the tribe failed to identify a specific trust duty that government failed to fulfill. El Paso Natural Gas Co. v. United States, No. 07-905, 41 ELR 20142 (D.D.C. Mar. 27, 2011) (Leon, J.).


RCRA, FEDERAL DEBT COLLECTION PROCEDURES ACT, STATUTE OF LIMITATIONS:

A district court held that the United States' action to collect an EPA civil monetary penalty imposed against an oil refining company under RCRA and the Federal Debt Collection Procedures Act (FDCPA) is not time barred. The parties agreed that the five-year limitations period under 28 U.S.C. §2462 is applicable to this action, but disagreed regarding when the period began to run. The government argued that its claim accrued on October 10, 2004, the date on which the company became noncompliant with the EPA Environmental Appeals Board (EAB) final order affirming the imposition of the penalty. The company, on the other hand, argued that the government's claim first accrued on September 10, 2004, the date on which the final order was issued and filed. The date triggering the clock under §2462 is the earliest date on which the government could have brought the present enforcement action. Here, the EAB final order provided for a 30-day period during which the parties could negotiate a payment plan and expressly deferred any payment obligation until October 10, 2004. Given that the government had to wait at least 30 days to receive payment, it would be inconsistent with the language of the order to conclude that, on September 10, 2004, the government could have initiated court proceedings against the company, insisting that it had a right to demand payment. Moreover, the government could not have satisfied the injury in fact and redressability requirements for Article III standing until that date on which the company defaulted on the penalty payment. And an action under the FDCPA is premature until such point as the government has a right to demand payment of an amount owed. Accordingly, the limitations period in this case began running on October 10, 2004, the date on which the company became noncompliant with the EAB order. The case is therefore timely. United States v. Dearborn Refining Co., No. 09-CV-13597, 41 ELR 20145 (E.D. Mich. Mar. 31, 2011) (Goldsmith, J.).


NOTICE; CONTAMINATED SITES:

A district court dismissed property owners' CERCLA, RCRA, and CWA claims against the current owner of a contaminated site for damages caused by the migration of contamination onto their property. Each of the three federal statutes requires plaintiffs to provide the owner with particular notice of their alleged statutory violations at least 60 days prior to filing suit. Those notice requirements are mandatory and plaintiffs must strictly comply with them. Here, the materials plaintiffs say amount to sufficient compliance are, in a number of material respects, plainly deficient. Consequently, the court dismissed all claims advanced under those federal statutes. The court declined to exercise its supplemental jurisdiction over the remaining state law claims. Those claims, therefore, were remanded to state court. LM Nursing Service, Inc. v. Ferreira, No. 09-cv-413, 41 ELR 20146 (D.R.I. Mar. 30, 2011) (McAuliffe, J.).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIROMENTAL IMPACT REPORTS:

A California appellate court upheld the dismissal of a petition challenging a city's environmental impact report (EIR) for and approval of a park project. An environmental group argued that the EIR failed to adequately analyze construction-related water quality impacts, the impact of using treated effluent from an adjoining lumber yard project on the project site, and the cumulative groundwater impacts of the project. The group's challenge regarding construction-related impacts is moot because the project was completed during the pendency of this appeal and no recognized exception to the mootness doctrine applies to warrant discretionary review of that issue. And while the remaining claims are not moot, the conclusions in the final EIR regarding the impact of using treated effluent from the adjoining lumber yard project are supported by substantial evidence. As such, the group failed to demonstrate a prejudicial abuse of discretion warranting reversal. Substantial evidence also supports the city's conclusion that the park project reduces rather than creates groundwater impacts. Consequently, no cumulative groundwater impacts analysis was required. Santa Monica Baykeeper v. City of Malibu, No. B222776, 41 ELR 20137 (Cal. App. 2d Dist. Apr. 5, 2011).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, CATEGORICAL EXEMPTIONS:

A California appellate court held that a city did not violate the California Environmental Quality Act (CEQA) when it approved an affordable housing project. In approving the project, the city concluded that the project satisfied the categorical exemption for in-fill development projects. Although the city waived certain development standards required by the state's density bonus law, the waiver did not violate CEQA's exemption guidelines. The individual challenging the approval also failed to present any substantial evidence of unusual circumstances that would prevent reliance on the categorical exemption. The court rejected his argument that the location of the project at the intersection of two major thoroughfares, and the city's traffic modeling, qualify as substantial evidence of an unusual circumstance. Nor did the city prevent the project from qualifying for a categorical exemption by having the developers dedicate land to reduce traffic impacts near the project. The individual offered no authority for the proposition that a positive effort between developers and a municipality to improve a project for the benefit of the community and address existing traffic concerns somehow becomes an evasion of CEQA. And the city did not violate the state's density bonus laws. Wollmer v. City of Berkeley, No. A128121, 41 ELR 20135 (Cal. App. 4th Dist. Mar. 11, 2011).


DRINKING WATER, STATE PLANS:

A California appellate court reversed a lower court decision dismissing petitioners' action to compel the state health department to prepare and submit a safe drinking water plan to the state legislature as required by state law. The department argued before the trial court that the statutory mandate to prepare and submit a plan was suspended by the Legislature's termination of a one-time fee provision in 1992. But declarations submitted by the department are of little value because they merely state legal conclusions. To the contrary, the duty to prepare and submit a safe drinking water plan pursuant to state law was not suspended. Newton-Enloe v. Horton, No. F060147, 41 ELR 20136 (Cal. App. 5th Dist. Apr. 4, 2011).


Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).


AIR:



  • EPA revised the regulatory criteria for clean alternative fuel vehicle and engine conversions. 76 FR 19830 (4/8/11).

  • EPA promulgated amendments to the new source performance standards and emissions guidelines for hospital/medical/infectious waste incinerators after remand by the D.C. Circuit. 76 FR 18407 (4/4/11).

  • SIP Approvals: Georgia (attainment of the 1997 annual average fine particulate matter NAAQS for the Rome nonattainment area) 76 FR 18650 (4/5/11). Ohio (volatile organic compound control measures) 76 FR 18893 (4/6/11).

  • SIP Proposals: New Jersey (finding of interstate transport of pollution from Pennsylvania) 76 FR 19662 (4/7/11). Oregon (interstate transport of pollution) 76 FR 19292 (4/7/11).

  • SIP Disapproval: Alabama (disapproval of visible emissions rules) 76 FR 18870 (4/6/11).

  • SIP Withdrawal: Texas (disapproval of system cap trading program revisions) 76 FR 19739 (4/8/11).

HAZARDOUS & SOLID WASTE:



  • EPA issued a site-specific treatment variance for selenium to U.S. Ecology Nevada in Beatty, Nevada, and withdrew one for Chemical Waste Management, Inc. in Kettleman Hills, California. 76 FR 18921 (4/6/11).

  • EPA approved revisions to Oklahoma's hazardous waste management program. 76 FR 18927 (4/6/11).

  • EPA proposed to issue a site-specific treatment variance for selenium to U.S. Ecology Nevada in Beatty, Nevada, and to withdraw one for Chemical Waste Management, Inc. in Kettleman Hills, California; see above for direct final rule. 76 FR 19003 (4/6/11).

  • EPA proposed to approve revisions to Oklahoma's hazardous waste management program; see above for direct final rule. 76 FR 19004 (4/6/11).

  • EPA entered into a proposed administrative de minimis settlement under CERCLA that requires 49 settling parties to pay over $1.2 million in U.S. response costs and potential natural resource damages incurred from their waste at the Casmalia Disposal Superfund site in Santa Barbara County, California. 76 FR 18549 (4/4/11).

WATER:



  • EPA Region 6 announced the availability of three TMDLs for waters listed in Louisiana's Mississippi River Basin under §303(d) of the CWA; the TMDLs were completed in response to a lawsuit against the Agency titled Sierra Club v. Clifford, No. 96-0527. 76 FR 18548 (4/4/11).

  • EPA determined that adequate and reasonably available facilities for the safe and sanitary removal and treatment of sewage from all vessels are present in the coastal waters of North Carolina for designation as a no discharge zone. 76 FR 18548 (4/4/11).

WILDLIFE:



  • FWS announced a 12-month finding on a petition to designate critical habitat and to list as endangered or threatened the Bearmouth and Byrne Resort mountainsnails and the meltwater lednian stonefly; the agency found that listing the meltwater lednian stonefly is warranted but precluded by higher priority actions. 76 FR 18684 (4/5/11).

  • FWS announced a 90-day finding on a petition to list the Peary and the Dolphin and Union population of the barren-ground caribou as endangered or threatened under the ESA; the agency found that listing may be warranted and initiated a status review. 76 FR 18701 (4/5/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Anacomp, Inc., No. 3:10-cv-1158 (D. Conn. Apr. 1, 2011). A settling CERCLA defendant responsible for violations at the Solvents Recovery Service of New England, Inc. Superfund site in Southington, Connecticut, must pay $30,463 in U.S. response costs incurred at the site. 76 FR 19386 (4/7/11).

  • United States v. City of Vineland, No. 1:11-cv-1826 (D.N.J. Mar. 31, 2011). A settling CAA defendant responsible for violations at the Vineland municipal oil- and coal-fired electric-generating station must pay a $850,000 civil penalty and must implement remedial measures at a cost of approximately $60 million. 76 FR 19127 (4/6/11).

  • In re Exide Technologies, No. 02-11125(KJC) (Bankr. D. Del. Mar. 31, 2011). Settling CERCLA and RCRA debtors responsible for violations at multiple sites nationwide must provide the United States with an allowed general unsecured claim in the amount of $67,599,678. 76 FR 19127 (4/6/11).

  • United States v. Virgin Islands, No. 3:09-cv-00156 (D.V.I. Mar. 28, 2011). Settling SDWA defendants responsible for discharges to an underground injection well must pay a $175,000 civil penalty. 76 FR 19128 (4/6/11).

  • United States v. Exxon Mobil Corp., No. 4:11-cv-01037 (S.D. Tex. Mar. 18, 2011). Settling CERCLA defendants that disposed of spent catalyst containing hazardous substances at the Many Diversified Interests Superfund site in Houston, Texas, must pay $1,750,000 in U.S. response costs incurred at the site. 76 FR 18782 (4/5/11).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


THE CONGRESS

Note: Citations below are to the Congressional Record (Cong. Rec.).


Chamber Action



  • H.R. 910 (climate), which would amend the CAA to prohibit the Administrator of EPA from promulgating any regulation concerning, taking action relating to, or taking into consideration the emission of a greenhouse gas to address climate change, was passed by the House, 157 Cong. Rec. H2505-07 (daily ed. Apr. 7, 2011).

Committee Action



  • H.R. 910 (climate) was reported by the Committee on Energy and Commerce, H. Rep. No. 112-50, 157 Cong. Rec. H2265 (daily ed. Apr. 1, 2011). The bill would amend the CAA to prohibit the Administrator of EPA from promulgating any regulation concerning, taking action relating to, or taking into consideration the emission of a greenhouse gas to address climate change.

Bills Introduced



  • S. 714 (Bingaman, D-N.M.) (federal land) would reauthorize the Federal Land Transaction Facilitation Act. 157 Cong. Rec. S2037 (daily ed. Apr. 4, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 715 (Lieberman, I-Conn.) (hydropower) would reinstate and transfer certain hydroelectric licenses and extend the deadline for commencement of construction of certain hydroelectric projects. 157 Cong. Rec. S2037 (daily ed. Apr. 4, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 718 (Roberts, R-Kan.) (pesticides) would amend FIFRA to improve the use of certain registered pesticides. 157 Cong. Rec. S2037 (daily ed. Apr. 4, 2011). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 741 (Udall, D-N.M.) (renewable electricity) would amend the Public Utility Regulatory Policies Act of 1978 to establish a renewable electricity standard. 157 Cong. Rec. S2187 (daily ed. Apr. 6, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 748 (Nelson, D-Fla.) (biofuel) would amend the Internal Revenue Code of 1986 to expand the definition of cellulosic biofuel to include algae-based biofuel for purposes of the cellulosic biofuel producer credit and the special allowance for cellulosic biofuel plant property. 157 Cong. Rec. S2187 (daily ed. Apr. 6, 2011). The bill was referred to the Committee on Finance.

  • S. 757 (Barrasso, R-Wyo.) (carbon dioxide capture) would provide incentives to encourage the development and implementation of technology to capture carbon dioxide from dilute sources on a significant scale using direct air capture technologies. 157 Cong. Rec. S2266 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 760 (Warner, D-Va.) (Chesapeake Bay watershed) would require OMB to prepare a crosscut budget for restoration activities in the Chesapeake Bay watershed and require EPA to develop and implement an adaptive management plan. 157 Cong. Rec. S2266 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 764 (Wyden, D-Or.) (Wild and Scenic Rivers Act) would amend the Wild and Scenic Rivers Act to make technical corrections to the segment designations for the Chetco River, Oregon. 157 Cong. Rec. S2266 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 765 (Wyden, D-Or.) (federal land) would modify the boundary of the Oregon Caves National Monument. 157 Cong. Rec. S2266 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 766 (Wyden, D-Ore.) (federal land) would provide for the designation of the Devil's Staircase Wilderness Area in the state of Oregon and designate segments of Wasson and Franklin Creeks in the state of Oregon as wild rivers. 157 Cong. Rec. S2266 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 1314 (Johnson, D-Ga.) (rare earths) would direct the Secretary of the Interior to conduct a global rare earth element assessment. 157 Cong. Rec. H2265 (daily ed. Apr. 1, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1335 (Platts, R-Pa.) (federal land) would revise the boundaries of the Gettysburg National Military Park to include the Gettysburg Train Station. 157 Cong. Rec. H2266 (daily ed. Apr. 1, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1340 (Young, R-Fla.) (community water systems) would amend the SDWA with respect to consumer confidence reports by community water systems. 157 Cong. Rec. H2266 (daily ed. Apr. 1, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1341 (Olson, R-Tex.) (EPA) would amend title 5 of the U.S. Code to require EPA to include in any notice of rulemaking a statement regarding the impact of the rule on jobs loss or creation. 157 Cong. Rec. H2291 (daily ed. Apr. 4, 2011). The bill was referred to the Committee on the Judiciary.

  • H.R. 1353 (Murphy, D-Conn.) (hydropower) would reinstate and transfer certain hydroelectric licenses and extend the deadline for commencement of construction of certain hydroelectric projects. 157 Cong. Rec. H2291 (daily ed. Apr. 4, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1372 (Goodlatte, R-Va.) (offshore drilling) would authorize the Secretary of the Interior to conduct oil and natural gas exploration, leasing, and drilling activities on the outer continental shelf offshore the state of Virginia. 157 Cong. Rec. H2327 (daily ed. Apr. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1375 (Pallone, D-N.J.) (fill material) would amend the Federal Water Pollution Control Act to clarify that fill material cannot be comprised of waste. 157 Cong. Rec. H2327 (daily ed. Apr. 5, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 1380 (Sullivan, R-Okla.) (energy tax incentives) would amend the Internal Revenue Code of 1986 to encourage alternative energy investments and job creation. 157 Cong. Rec. H2409 (daily ed. Apr. 6, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 1384 (Heller, R-Nev.) (geothermal energy) would amend the Internal Revenue Code of 1986 to temporarily increase the investment tax credit for geothermal energy property. 157 Cong. Rec. H2409 (daily ed. Apr. 6, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 1391 (McKinley, R-W. Va.) (fossil fuel combustion waste) would prohibit EPA from regulating fossil fuel combustion waste under subtitle C of the Solid Waste Disposal Act. 157 Cong. Rec. H2410 (daily ed. Apr. 6, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1393 (Buchanan, R-Fla.) (offshore drilling) would reform the Bureau of Ocean Energy Management, Regulation, and Enforcement and repeal the limitation of liability of a responsible party for discharge of oil from an offshore facility. 157 Cong. Rec. H2410 (daily ed. Apr. 6, 2011). The bill was referred to the Committee on Natural Resources and to the Committee on Transportation and Infrastructure.

  • H.R. 1405 (Latta, R-Ohio) (coal combustion byproducts) would prohibit EPA from regulating coal combustion byproducts as hazardous waste under subtitle C of the Solid Waste Disposal Act. 157 Cong. Rec. H2410 (daily ed. Apr. 6, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1412 (Terry, R-Neb.) (fuels) would amend the CAA to provide for a reduction in the number of boutique fuels. 157 Cong. Rec. H2533 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1413 (DeFazio, D-Or.) (federal land) would provide for the designation of the Devil's Staircase Wilderness Area in the state of Oregon and designate segments of Wasson and Franklin Creeks in the state of Oregon as wild or recreation rivers. 157 Cong. Rec. H2533 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1414 (DeFazio, D-Or.) (federal land) would modify the boundary of the Oregon Caves National Monument. 157 Cong. Rec. H2533 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1415 (DeFazio, D-Or.) (Wild and Scenic Rivers Act) would amend the Wild and Scenic Rivers Act to make technical corrections to the segment designations for the Chetco River, Oregon. 157 Cong. Rec. H2533 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1421 (Boren, D-Okla.) (dam maintenance) would amend the Water Resources Development Act of 1986 to clarify the role of the Cherokee Nation of Oklahoma with regard to the maintenance of the W.D. Mayo Lock and Dam in Oklahoma. 157 Cong. Rec. H2533 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Transportation and Infrastructure and to the Committee on Natural Resources.

  • H.R. 1427 (Harper, R-Miss.) (SDWA) would amend the SDWA to reauthorize technical assistance to small public water systems. 157 Cong. Rec. H2533 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1436 (Smith, R-N.J.) (nuclear safety) would amend the Atomic Energy Act of 1954 to require a nuclear power facility licensee to notify the NRC and the state and county in which the facility is located within 24 hours of an unplanned release of radionuclides in excess of allowable limits. 157 Cong. Rec. H2534 (daily ed. Apr. 7, 2011). The bill was referred to the Committee on Energy and Commerce.

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2011, visit our list of Cumulative State Developments. For state material reported prior to 2011, visit the ELR Archives.


The states below have updates this week:

Alabama
Delaware
Illinois

Kentucky
Maine
Mississippi

New Mexico
North Carolina
Oregon

ALABAMA


Climate:



DELAWARE


Air:



  • The Department of Natural Resources and Environmental Control amended 7 Del. Admin. Code 1142, Control of NOx Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries. These amendments are based on an agreement between the Department and the Delaware City Refining Company, LLC, which states that the Department will propose to revise §2.0 of 7 Del. Admin. Code 1142 to provide for a facility-wide NOx emission cap compliance alternative to the existing unit specific NOx emission limitations. See http://regulations.delaware.gov/register/april2011/final/14%20DE%20Reg%201092%2004-01-11.htm#P10_214.

ILLINOIS


Air:



  • The Pollution Control Board amended 35 Ill. Admin. Code §240, Mobile Sources. Changes exempt model year 1995 and older vehicles from inspection, replace the transient loaded mode emissions inspection test with the on-board diagnostic inspection test as the primary test, and maintain the steady-state idle exhaust gas analysis and evaporative system integrity emissions tests as secondary emissions tests. Changes took effect March 18, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue14.pdf (pp. 5552-89).

KENTUCKY


Water:



  • The Energy and Environment Cabinet proposed to amend 401 Ky. Admin. Regs. 51:052, Review of new sources in or impacting upon nonattainment areas. Changes relate to calculating offsets for operating hours and source shutdowns. There will be a public hearing April 26, 2011, and the deadline for public comment is May 2. See http://www.lrc.state.ky.us/kar/401/051/052reg.htm.

MAINE


Air:



  • The Department of Environmental Protection amended Ch.118, Gasoline Dispensing Facilities Vapor Control. Changes repeal the January 2012 Stage II requirements for vapor controls and implement new controls to compensate for increased volatile organic compound emissions. The chapter now requires the Department to install and test pressure/vacuum vent caps on gasoline dispensing facilities by January 1, 2012, as one of the measures used to address this requirement. The measure addresses the increase in volatile organic compound emissions resulting from the removal of Stage II requirements but does not fully compensate for the removal of the original requirements. The amendment took effect April 3, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/040611.html.

  • The Department of Environmental Protection amended Ch. 425, Asbestos Management Regulations. Changes would promote the use of "risk-based" standards to regulate asbestos more effectively in areas of greatest risk for exposure and integrate changes to standard industry practice that have evolved over the past six years. The amendment took effect April 3, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/040611.html.

Climate:



MISSISSIPPI


Air:



NEW MEXICO


Air:



  • The Environmental Improvement Board proposed to revise N.M. Code §§20.2.73 and 20.2.81, to conform those rules to federal requirements for regional haze. The plan establishes requirements for state rules to meet the requirements of 40 C.F.R. §51.309, including a determination of best available retrofit technology for nitrogen oxides. There will be a public hearing on June 1, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii06/EIBnotice.htm.

NORTH CAROLINA


Air:



  • The Department of Environmental Management proposed to amend 15A N.C. Admin. Code 02D.0400, Sulfur Oxides. Changes would incorporate revised NAAQS into the state code. There will be a public hearing May 4, 2011, and the comment period ends May 31. The proposed effective date is September 1. See http://www.ncoah.com/rules/register/Volume25Issue19April12011.pdf (pp. 2224-25).

OREGON


Climate:



  • The Land Conservation and Development Department proposed to adopt Or. Admin. R. 660.044, Metropolitan Greenhouse Gas Reduction Targets. Changes would set light vehicle greenhouse gas emissions targets for the state's metropolitan areas for 2035. The targets are designed to guide local governments in land use and transportation planning to help the state achieve 2050 targets of greenhouse gas emissions 75% below 1990 levels. The guidelines encourage metropolitan areas to use the standards required of Portland. The regulation would include guidelines on accommodating economic development and housing needs, expanding transportation options, and reducing transportation costs to reduce greenhouse gas emissions. The deadline for comment is April 21, 2011. See http://arcweb.sos.state.or.us/rules/April_2011_Bulletin.pdf.

Energy:



  • The Department of Energy amended Or. Admin. R. 330.160, which relates to the renewable energy portfolio standard. Changes recognize the Low Impact Hydropower Institute as the national agency to certify hydroelectric facilities as low impact. The rule was certified on February 22, 2011. See http://arcweb.sos.state.or.us/rules/April2011_Bulletin.pdf (pp. 70-72).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


INTERNATIONAL

WORLD BANK TO RESTRICT FOSSIL FUEL FUNDING

The World Bank announced that it will seriously restrict its funding for fossil fuel projects, restricting money for coal-fired power plants to only the poorest countries, and only when they can prove alternative projects are not feasible. However, the Bank immediately faced criticism from environmental activists who accused it of "trying to greenwash its activities while by and large continuing with dirty business as usual." Alison Doig, senior adviser on climate change at the charity Christian Aid, called the draft of the new energy strategy "worryingly vague." Green campaigners have attacked the Bank's practices in the past, such as its decision last year to grant nearly $4 billion to South African coal giant Eskom. Last year, the Bank spent 25 percent of its total spending on energy projects on coal-fired power in developing countries. The Bank may also be charged with dispensing funds from rich to poor countries to help them manage the effects of climate change under the Copenhagen Accord. A coalition of 100 local and international organizations sent a letter to Mexico's secretary of foreign affairs, and to the head of the climate change secretariat of the U.N. Framework Convention on Climate Change stating that "the World Bank is not suited to advise in the design of a fund that must ensure fair and effective long-term financing based on the principles of environmental integrity, equity, sustainable development and democracy."For the full story, see http://www.guardian.co.uk/environment/2011/apr/04/world-bank-funding-coal-power. For more on the role of the Bank in dispensing climate change funds, see http://www.ipsnews.net/news.asp?idnews=55148. For news on a new Bank solar project, see http://www.istockanalyst.com/business/news/5030682/wb-approves-grant-for-more-electrification-in-rural-bangladesh.


GERMANY SHIFTS AWAY FROM NUCLEAR, MONGOLIA ANNOUNCES NEW PLANT

In the aftermath of Japan's nuclear crisis, Angela Merkel has begun a shift to move Germany away from nuclear power in efforts that will make the country much more reliant on Russian gas. Germany currently imports about 85 percent of its natural gas and is more reliant on Russia for its energy needs than the European Union as a whole. "So far the public debate in Germany has focused on the desire to exit nuclear energy with little thought being spared as to what is actually going to replace it," said Merkel. Public backlash against nuclear may result in seven plant closures, without a viable alternative power source. Merkel has voiced a desire to replace nuclear power stations with wind farms, but a study indicated that Germany would have to devote two percent of its land mass to the farms to fully replace nuclear. Industry group Bundesverband WindEnergie president said that technically 22 percent of the nation's land is suitable for wind energy, but woodlands, sanctuaries, and other protected lands put the realistic figure closer to eight percent. Italy also responded to a public backlash, placing a one-year moratorium on all new nuclear projects. Meanwhile, a senior official of the Mongolian MonAtom power company announced plans to tap the country's rich uranium resources to build the nation's first nuclear plant. The deputy chairman said that Japan's nuclear crisis would not have a lasting impact on the industry and that the company planned to finish the plant by 2020. In addition, Czech Prime Minister Petr Nečas told journalists that the Czech Republic would not slow down nuclear production and may increase coal mining limits. For the full story, see http://www.bloomberg.com/news/2011-04-07/russian-gas-beckons-for-germany-as-merkel-turns-from-nuclear.html. For the story on a potential switch to wind, see http://inhabitat.com/?p=235641. For the story on Italy's nuclear future, see http://www.npr.org/2011/03/23/134784485/italy-freezes-its-nuclear-plan-after-japan-crisis. For the story on Mongolian nuclear power, see http://www.reuters.com/article/2011/04/07/us-mongolia-nuclear-idUSTRE73625A20110407. For the story on Czech nuclear power, see http://www.praguepost.com/business/8180-germany-does-a-nuclear-180.html.


IOI CENSURED BY INDUSTRY GROUP FOR ENVIRONMENTAL VIOLATIONS

The Roundtable on Sustainable Palm Oil, an industry body promoting eco-friendly palm oil, has censured IOI Corp., Malaysia's second largest planter. A grievance panel investigated and found breaches of membership obligations after environmental activists accused IOI of draining peatlands and engaging in land disputes with local communities in Sarawak. The company has 28 days to deliver a proposal to resolve standing issues. Should it fail, the Roundtable on Sustainable Palm Oil threatened further sanctions against the company, "which may include the suspension of [its] license for new transactions involving Certified Sustainable Palm Oil materials including GreenPalm certificates." According to the group, the investigation came after IOI continued operations after a March 2010 court decision that held that the plantations were on community lands. For the full story, see http://www.reuters.com/article/2011/04/07/us-malaysia-palm-ioi-idUSTRE73620520110407.


Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


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